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State v. Lucicosky

Court of Appeals of Ohio, Seventh District, Mahoning

May 23, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MARK LUCICOSKY, DEFENDANT-APPELLANT.

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2015 CR 462

          For Plaintiff-Appellee: Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones

          JUDGES: Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro

          OPINION

          ROBB, P.J.

         {¶1} Defendant-Appellant Mark Lucicosky appeals the sentence entered by the Mahoning County Common Pleas Court for his convictions for attempted pandering obscenity involving a minor and pandering obscenity involving a minor convictions. Two issues are raised in this appeal. The first is whether the trial court errored in imposing consecutive sentences. The second issue is whether the offenses are allied offenses of similar import and, if so, did the trial court err when it failed to merge the offenses.

         {¶2} For the reasons expressed below, the trial court did not err when it failed to merge the offenses. The trial court, however, did fail to make the requisite consecutive sentence findings. Accordingly, the sentence is vacated and the cause is remanded for resentencing.

         Statement of the Case

         {¶3} Appellant was indicted for pandering obscenity involving a minor. 5/14/15 Indictment. The first two counts of the indictment were for violations of R.C. 2907.321(A)(2)(C), pandering obscenity involving a minor, second-degree felonies. Counts three through seventeen were for violations of R.C. 2907.321(A)(5)(C), pandering obscenity involving a minor, fourth-degree felonies.

         {¶4} In March 2016, Appellant and the state entered into a Crim.R. 11 agreement. 3/11/16 J.E. The state amended count one of the indictment to attempted pandering obscenity involving a minor in violation of R.C. 2923.02 and R.C. 2907.321(A)(2)(C), a third-degree felony, and dismissed count two of the indictment. 3/11/16 J.E. Appellant pled guilty to amended count one and counts three through seventeen. 3/18/16 Crim.R. 11 Guilty Plea. The state recommended a 10-year sentence and a Tier II sex offender registration. 3/18/16 Crim.R. 11 Guilty Plea.

         {¶5} At the sentencing hearing, the state followed the plea agreement and recommended a 10-year sentence. Sentencing Tr. 5. The state argued a 10-year sentence was warranted because the National Center for Missing and Exploited Children was able to identify 27 children in Appellant's collection of child pornography, and each of those children were victims. Sentencing Tr. 3-4. Appellant argued the offenses should merge and asked for a lesser sentence. Sentencing Tr. 8-15.

         {¶6} The trial court sentenced Appellant to an aggregate eight-year sentence. He received three years on count one and one year on counts three through seventeen. The one-year sentences on counts three through seven were ordered to run consecutive to each other and consecutive to the three-year sentence on count one. The one-year sentences on counts eight through seventeen were ordered to run concurrent to each other and concurrent to all other sentences imposed. Sentencing Tr. 19.

         {¶7} Appellant timely appeals the sentence.

         First Assignment of Error Consecutive Sentences

         "The trial court erred in imposing consecutive sentences, totaling 8 years, because the record does not contain any evidence of a pattern ...


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